Privileged and Confidential Documents

What are privileged or confidential documents?

Most of the documents in the archive were turned over by tobacco companies in lawsuits; the legal terminology is that documents are "produced in discovery."

There are two principal grounds for a defendant to refuse to produce documents:

• Privilege - communications with attorneys for the purpose of seeking legal advice
• Confidential – trade secret - Economically valuable information, such as marketing plans, ingredient lists and research budgets.

Privileged materials are designated attorney-client privilege (AC), work-product protection (WP/OWP), or joint-defense/common-interest (JD/CI) - see code descriptions below for more information. Confidential trade-secret documents are often produced to the other side in a lawsuit, but under a court-issued protective order that prohibits the receiving side from disclosing them to anyone else.

The Master Settlement Agreement (MSA) and the Judgment in United States v. Philip Morris USA, Inc (the 2006 RICO trial) require the tobacco companies to create public websites disclosing documents produced in litigation. The companies are not required to post documents that they claim as privileged or confidential but they are required to provide lists of these documents -- a "privilege log" and a "confidentiality index."

How do I know whether a document is privileged or confidential? Can I access the document?

Privileged and confidential documents have a lock icon in the document image area. This is because the archive only has the index records of the documents but it does not have the document images.

• These restricted documents can actually be very important documents and you may be able to find a public version of the restricted document to read. Click on the title to open the document record, then clicking on the "More Like This" button in the top right hand "Browse" area of the document view. This will show you if there are any unrestricted versions as well as any documents that may be related.

We use the "Availability" field to provide information about a document that a company has listed on a privilege log or confidential index. For documents that a company has claimed are privileged, the "Availability" field says privileged and often includes specific codes explaining the type of privilege claim under which it was withheld from production. For documents that a company has claimed are confidential, the "Availability" field has the value confidential.

For documents that a company had claimed as privileged or confidential but that claim was withdrawn, the "Availability" field has the value formerly privileged or formerly confidential.

Searching For or Excluding Privileged or Confidential Documents

If you don’t want to see privileged or confidential document records in your search results, click the Hide Restricted Documents box on the search page. Leave the box unchecked if you want to view them.

To view formerly confidential or formerly privileged documents in your search results, open the "Availability" facet on the left side of the page and click on the type of document you want to see.

Privileged Codes

Six (6) collections - Philip Morris, R.J. Reynolds, Lorillard, American Tobacco, Brown & Williamson, and British American Tobacco - include records of documents withheld from production due to claim(s) of attorney-client privilege (AC), work-product protection (WP/OWP), and joint-defense or common-interest privilege (JD/CI).

Attorney-Client Privilege ("AC")
Confidential communications exchanged between or among in-house or outside attorneys. These are documents that contain legal advice, requests for legal advice or services, or provide information in connection with the rendering of legal advice or services. Additionally, this category includes confidential documents which have been redacted or withheld because they contain, refer to, or describe confidential attorney-client communications or the substance of such communications. Can include:

• 1A - Confidential communications from tobacco company employees to tobacco company counsel
• 1B - Confidential communications from tobacco company counsel to tobacco company employees
• 1C - Confidential communications between tobacco company counsel
• 1D - Confidential communications between tobacco company employees containing, or for the purposes of obtaining, legal advice
• 2 - Confidential communications between employees or counsel and the employees or counsel of an agent, confidential litigation consultant, or informal consultative expert of the tobacco company or another entity with a common interest

Work Product ("WP")
Reports, statements, correspondence, memoranda or other documents prepared in anticipation of litigation by the client, a representative of the client, the attorney, or a representative of the attorney. Can include:

• OWP - (Opinion Work Product) containing counsel's mental impressions, opinions, conclusions or legal theories
• FWP - (Fact Work Product) containing facts obtained by counsel or at the request of counsel

Joint Defense/Common Interest ("JD")
Documents containing legal advice, requests for legal advice or services, or provide information in connection with the rendering of legal advice or services and/or reports, statements, correspondence, memoranda or other documents prepared in anticipation of litigation by the client, a representative of the client, the attorney, or a representative of the attorney and other companies, their employees, their counsel and/or agents with a common interest or in a joint defense with the tobacco company. Can include:

• 3A - Confidential communications between Philip Morris USA, Inc. counsel and the employees or counsel of another entity with a common interest.
• 3B - Confidential communications between Philip Morris USA, Inc. employees and the employees or counsel of another entity with a common interest.